August 28, 2018

Episode 88: A Deep Dive into the Anwar al-Awlaki Case(s)

1 hour 11 minutes

We are back this week with a new “deep dive” episode, this time focused on the issues raised by the U.S. government’s use of lethal force against Anwar al-Awlaki–a U.S. citizen who became a key figure associated with al Qaeda in the Arabian Peninsula. Tune in for a detailed backgrounder covering:

the unsuccessful attempt by al-Awlaki’s father to obtain ex ante injunctive relief in federal court (and the standing, political question doctrine, and state-secrets privilege issues that suit raised)

the unsuccessful attempt by his father to obtain Bivens damages after a drone strike killed al-Awlaki

the “white paper” the Justice Department produced to give a sense of its position on the merits as to when it is constitutional and otherwise lawful to use lethal force against a citizen in this context, and the Second Circuit’s determination that the government had largely waived privilege as to the OLC memorandum underlying that white paper (and the disincentive this created for further white papers, speeches, and the like regarding internal legal advice/positions)

the merits of the arguments as set forth in that white paper (Fourth Amendment seizures and Fifth Amendment Due Process, criminal laws prohibiting overseas killing of citizens, and the Executive Order prohibiting “assassination”)

In short, this episode covers a wide-array of topics. One could teach a whole course in national security law based in no small part on just these topics.

Note: there will be no separate episode this week or next regarding events since the morning of Tuesday August 21st (aka, pre-Cohen plea). Steve is traveling, so he and Bobby pre-recorded this deep dive episode as well as next week’s (episode 89) in advance. We’ll be back with a “regular” episode (episode 90) on or about Thursday September 6. One can only imagine what will have transpired by then; both your co-hosts will be commenting via Twitter all the while, of course, so be sure to follow them at @steve_vladeck and @bobbychesney.

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By Bobby Chesney and Steve Vladeck